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The Court of the Marshalsea In Late Tudor and Stuart England Downloaded from https://academic.oup.com/ajlh/article/20/4/267/1790893 by guest on 30 September 2021

by DOUGLAS G. GREENE*

At the end of the sixteenth and continuinginto the seventeenth century, the superior common law courts at Westminster attempted to limit the authority of other tribunals. 1 Among those courts which faced pressure from the King's Bench and the Common Pleas was the Court of the Steward and Marshal of the King's household, usually known during the period as the Court of the Marshalsea." The Marshalsea handled disputes occurring within the "verge"- an area twelve miles in all directions from the King's residence. It was an ambulatory tribunal since the location of the verge changed whenever the King moved to a different residence. The Court's legal competence was defined in the Articuli super Cartas, forced on a reluctant King Edward I in 1301. The exact language of this statute was to become important in the contest between the Marshalsea and the common law courts at Westminster: "from henceforth they [the Steward and Marshal] shall not hold plea of freehold neither of debt nor of covenant nor of any contract made between the King's people but only of trespass done within the house and of other trespasses done within the verge and of contracts and covenants that one of the King's house shall have made with another of the same house and none other where ..."3 By the ordinances of 1311,4 and statutes of 1331 5 and 1336,6 errors in the Marshalsea could be appealed to the King's Bench.

*Department of History, Old Dominion University, Norfolk, Va. 23508 1. Details on the origin, organization, and jurisdiction of the Medieval Court of the Marshalsea are in W. R. Jones, "The Court of the Verge: the Jurisdiction of the Steward and Marshal of the Household in later Medieval England," 10 J. of Brit. Studies, 1-29 (1970). I am grateful to ProfessorJones for reading and commenting upon a draft of my essay. 2. As Professor Jones points out in the first footnote of his article, the Court had a number of different names. I have decided to refer to it as "the Court of the Mar• shalsea" rather than Professor Jones's choice "the Court of the Verge." "Marshalsea" was a vague term, but it is useful in attempting to distinguish between the ancient Court of the Steward and Marshal and the new tribunal created by James I's letters patent of 1611. 3. 28 Edward I, c. 3. As the punctuation of the statute became an issue in deciding the court's jurisdiction, I have removed the commas which appear in printed versions. 4. 5 .Edward II, c. 26. 5. 5 Edward III, c. 2. 6. 10 Edward III, c. 1.

267 268 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XX

During the later middle ages, the Court of the Marshalsea attempted to extend its authority over contracts and covenants. By the second quarter of the fifteenth century, the officers of the Marshalsea had devised a method to hold such pleas when neither party was a servant of the King. The Court began determining those cases by the simple expedient of falsely recording Downloaded from https://academic.oup.com/ajlh/article/20/4/267/1790893 by guest on 30 September 2021 that the principals were members of the royal household and refusing to allow exceptions to that allegation. Parliamentary statute and judicial deci• sion ended the Marshalsea's fiction and reaffirmed that in cases of contract and covenant both parties must be royal servants. 7 During the reign of Elizabeth, the dispute between the superior com• mon law courts and the Marshalsea began to concern jurisdiction over trespass rather than contract and covenant. The common law had devised new forms of action, trover and assumpsit, which gradually superseded the older actions as covenant, debt, and account. The action of trover depended on a legal fiction, that the defendant had found goods belonging to the plaintiffand refused to return them. Bypurchasing this writ, the plaintiffhad to demonstrate only that the defendant was in possession of his property. He did not have the more difficult task of proving that the defendant had stolen, or otherwise wrongfully taken, the goods. Trover thus in many cases re• placed the plea of trespassvi et armis. Similarly, assumpsit superseded older contractual actions. Both assumpsit and trover were pleas of trespass on the case, rather than trespass vi et armis. 8 The definition of the word "trespass" in the Articuli super Cartas was thus important. Edward I's statute, which allowed the Marshalsea cognizance "of trespasses done within the verge," seemed to permi t the Court to hear the new and popular actions of assumpsit and trover. Since the Marshalsea was speedy and inexpensive, it apparently began taking business from other courts. The judges of the King's Bench and the Common Pleas, however, argued thatArticuli super Cartas referred only to simple trespassvi et armis and not to the newer actions, and that the statute limited the Marshalsea to cases involving royal servants, Sir Edward Coke wrote that "though this act speaketh generally of trespasses, yet is it onely intendable of trespassesvi & armis, as of battery, or taking away of goods, and not of trespasses quare clausu m fregit, nor of trespasses and ejectment, nor of trespasses su r le case ..."9 The common law judges did not oppose the Marshalsea on grounds used against prerogative or ecclesiastical courts. Since the Marshalsea's procedure was based on the common law, it could not be described with the High Commission and the other church courts as a "foreign" tribunal. Nor

7. 15 Henry VI. c. 2. 8. William Holdsworth, A History ofEnglish Law (5th ed.; 1966), v. 3, pp.350-351, 429. 442-454. 9. Sir Edward Coke, The Second Part of the Institutes of the Laws of England; Containing the Exposition ofMany Ancient, and other Statutes ... (4th ed.; 1677), p. 548. 1976 THE COURT OF THE MARSHALSEA 269 could claims be sustained that the Marshalsea had been newly instituted by royal prerogative. Even those who wanted to limit the Court's jurisdiction admitted that it was ancient, and there was a widely held misconception that it was the oldest court in England.'? Coke, who fancied himself an etymologist, believed that the names of the Court and its officers "be derived Downloaded from https://academic.oup.com/ajlh/article/20/4/267/1790893 by guest on 30 September 2021 from two Saxon words, which we conceive tendeth much for the proofof the antiquity of our nation, seeing other nations have the same officers and offices; and in respect their name is derived from the language of our ancestors, it is like they took the same from us. "11 It is, however, true that in Cox v. Gray, decided in 1608, Justice Williams recognized that, unlike other common law courts, the Marshalsea had not existed since "time out of mind." Williams argued that it had been instituted by royal prescription, but the other judges disagreed. Chief Justice Fleming responded that "this cannot be agreed unto, for that every prescription implies a grant, but this Court was not by grant instituted, but of common right ..."12 The crown fought attempts to limit the Marshalsea's authority. The Court was sometimes called the King's "private liberty."13 After the exten• sion of the King's peace during the Norman and early Plantagenet periods, the King had become theoretically the fount of justice, but by the fourteenth century the major common law courts were, at least in practice, semi• independent. The steward of the royal household, who acted as judge of the Marshalsea, and the knight marshal, who enforced the Court's judgments,14 remained much more literally the King's servants than did the justices of the superior courts at Westminster. Much as the Bishop of Durham and other peers held private franchises or liberties, which were for the most part independent of the central courts, the Marshalsea was considered to be the King's private jurisdiction. Its preservation was obviously importantin main• taining both the King's position and his pride. Although ChiefJustice Flem• ing wanted to limit the jurisdiction of the Marshalsea, he clearly expressed the crown's desire to preserveit: "so long as thereis a king, so longof absolute necessity there ought for to be a Court of Marshalsie."15 The dispute over the Marshalsea's jurisdiction of trespass began in Baptist v. Michelborn, decided in 1596. Both Sir George Croke and Sir Edward Coke reported this case, but neither recorded many details. Michel• born brought an action of trover against Baptist in the Court of the Mar-

10. Great Britain, The Journal ofthe House ofCommons [hereaftercited as "].C."], v. 1, p. 1040. 11. Sir Edward Coke, The Fourth Part of the Institutes of the Laws ofEngland, Concerning the Jurisdiction ofCourts (5th ed.; 1671), p. 130. 12. Edward Bulstrode, The Report ofEdward Bulstrode of the Inner Temple Es- quire, His Highnesse ChiefJustice of North Wales . ..(1657), pp. 208, 211. 13. Ibid., p. 208. 14. Jones, Ope cit. supra, note 1, pp. 2, 8. 15. Bulstrode, Ope cit. supra, note 12, p. 211. 270 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XX shalsea. The matter of the dispute is not further detailed, except that the trespass occurred in Southwark, which was at that time within the verge. Michelborn won the case, but Baptist brought a writ of error to Queen's Bench, because neither of the parties was a member of the royal household. Downloaded from https://academic.oup.com/ajlh/article/20/4/267/1790893 by guest on 30 September 2021 Sir George Croke's report implies that the justices discussed whether new forms of trespass, such as trover, could be brought before the Marshalsea, but apparently they reached no decision on that matter. A majority of the Queen's Bench agreed with Baptist that the Marshalsea could decide only those cases which involved royal servants.l" At least a portion of the reasoning which led the judges to reach that decision is revealed in Sir Edward Coke's account of Michelborn's Case. According to the Articuli super Cartas, the Steward and Marshal could hold plea "only of trespass done within the house and of other trespasses done within the verge ..." This passage seemed to give the Marshalsea jurisdic• tion of all trespasses within twelve miles of the King's residence, but Coke interpreted the words in a different manner. Trespasses within the house meant, Coke asserted, that "both parties are of the household," and tres• passes within the verge limited the Court to casesin which "oneof the parties is of the household."17 At first glance, Coke's interpretation has little relation• ship to the wording of the statute, but he and other judges would further explain their reasoning in later decisions. The decision in Baptist v. Michelborn was never entered on Queen's Bench records, because one of the parties died while the matter was being adjudicated, but the case became the main precedent for Cox v. Gray, decided in 1608. This case took the Michelborn decision a step further. In Michelborn's Case, the justices limited the Marshalsea's jurisdiction of tres• pass to disputes involving members of the royal household, but it did not define trespass in such a way as to prohibit the Marshalsea from hearing cases of trover and assumpsit. In Cox v. Gray, one of the major points at issue was the Marshalsea's jurisdiction of trover. As in Michelborn's Case, few details survive of the background of the Cox dispute. Jeremy Gray brought an action of trespass on the case, specifically, trover, against Cox in the Court of the Marshalsea. Neither of the parties was a royal servant. The Marshalsea ruled in favor of the plaintiff, but Cox then brought a writ of error to the King's Bench. He died "hanging this Writ," but the case was decided in favor of Mary Cox, his widow and executrix. Each justice prefaced his argument by praising the Marshalsea's age, dignity, and usefulness. They were not, they explained, attempting to attack

16. Sir George Croke, The First Part ofthe Reports ofSir George Croke Kt, Late one of the Justices of the Court of Kings-Bench, and formerly one of the Justices of the Court ofCommon-Bench ... (2nd ed.; 1669), p. 502. 17. Sir Edward Coke, The Sixth Part ofthe Reports ofSir Edward Coke, Kt, Lord ChiefJustice of England . .. (1738), fols, 20v-21. 1976 THE COURT OF THE MARSHALSEA 271 the Marshalsea but only to force it to remain within its correct legal bound• ary. The first matterdecided was whether the King's Bench had the authority to hear Cox's complaint. The judges examined precedents and discussed legal principles, and they decided that the Marshalsea was an inferior court and thus could be controlled by the King's Bench. ChiefJustice Sir Thomas Downloaded from https://academic.oup.com/ajlh/article/20/4/267/1790893 by guest on 30 September 2021 Fleming argued that, since the jurisdiction of the Steward and Marshal changed according to the residence of the King, the Marshalsea was not a superior tribunal: "the Court of Marshalsie follows the Person of the King; but this Court of King's Bench, represents the Person of the King." Justice John Croke contributed a watery metaphor to prove the same point: "the Court of Marshalsie is a Court, like unto a small River flowing from the Common Law as from the Fountain." In short, all the precedents offered by the counsel for the Marshalsea that the Steward and Marshal had long determined all cases of trespass within the verge were of no significance. They were the precedents of a lower court-"a small river" -and could make no difference in the King's Bench, which represented the "fountain" of the common law. Justice David Williams pugnaciously expressed this view• point: "as to presidents of their Court; that they use the contrary, if they have three millions of presidents, no account will be had of them, for that they ought to be ruled in their proceedings there, by the Rules of the Common Law; and their usages there, in their inferiour Courts shall not bind these our higher Courts ..." The judges thus decided that they had the right to hearCox's suit and to rule on the jurisdiction of the Court of the Marshalsea. But when they examined the wording of the Articuli super Cartas, they could not reach a decision so easily. Obviously, they wanted to decide that the Marshalsea could not determine most cases of trespass. Since the references to trespass in the Articuli super Cartas apparently supported the Marshalsea, it is not surprising that they did not come to a unanimous conclusion. Croke, Wil• liams, and Yelverton argued that both parties to every case determined by the Marshalsea must be membersof the King's household. Fleming, on the other hand, decided thatonly one party must be a royal servant. Williams produced an ingenious, but unconvincing, argument that the Marshalsea was limited to cases involving the household. He contended that a full stop should be made after the phrase "only of trespass done within the house." The succeed• ing clause, "and of other trespasses done within the verge," would thus be limited by the words "that one of the King's house shall have made with anotherof the same house." Williams' argument was farfetched, for the final clause clearly refers to contract and covenant rather than trespass. Fleming used Williams' argument to conclude that the act was "doubtfully penned," and, in such situations, the common law had to discover the correct interpre• tation. Williams summed up what seems to have been the consensus of the judges' opinions: "where their Bounds are not determined, this is then left unto the Common Law," and the precedents of the superior courts limited the Marshalsea to hearing only those cases in which one and perhaps both 272 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XX parties were royal servants. 18 Although Bulstrode's report of Cox v. Gray is unspecific about the Marshalsea's right to decide matters involving trespass on the case, itis probable from a remarkofJustice Croke and a latercomment by Coke that the King's Bench forbade the Marshalsea from trying cases of Downloaded from https://academic.oup.com/ajlh/article/20/4/267/1790893 by guest on 30 September 2021 trover. 19 Justice Williams concluded his remarks in Cox v. Gray by advising the Marshalsea "not to swell, for if they did this Court would then soon put them down, and keep them within their bounds." Williams, however, neglected to explain how the King's Bench could "put them down." A decision had been made and recorded that a party could purchase a writ of errorif the case had not involved the household, but there were no teeth in that decision. The common law courts at Westminster were dilatory and expensive, and few aggrieved parties would have had the time or the money to carry theircases to a highercourt. For the most part, therefore, the Marshalsea would be able to continue hearing cases which were outside its jurisdiction. This was clearly the fear of many common law justices, forinjohns v. Smith, decided in 1611, they devised an effective sanction against the Marshalsea. Smith had af• firmed a plaint against Johns for a trespass (the exact nature of which is not mentioned) in the Court of the Marshalsea, and in September, 1609, Smith obtained a writ of capias to imprison the defendant. After being incarcerated for two weeks, Johns sued Smith for false imprisonment. When the case reached the King's Bench, Johns seems to have claimed that the actions against him were illegal on the now familiar grounds that neither of the parties was a royal servant. Smith responded that the Marshalsea "hath jurisdiction to hold all pleas of all trespasses within the verge." Considering their previous decisions about the Marshalsea, it is not surprising that the justices concluded that the Articuli super Cartas prohibited "any pleas unless betwixt persons of the hostel. "20 Smith was thus liable to a charge of false imprisonment, a decision which would discourage those who were not royal servants from bringing cases of trespass to the Marshalsea. The next important case concerning the Marshalsea put the capping stone on all the previous decisions. A Common Pleas case, Hall v. Stanley and others, was so important in defining the jurisdiction of the Steward and Marshal that it became known as the Case ofthe Marshalsea. The justices of Common Pleas reinforced earlier decisions restricting the Marshalsea to cases involving the household and prohibiting it from determining trespass

18. Bulstrode, Ope cit. supra, note 12, pp. 207-214. 19. Croke said that "in this case neither for the Action [Trover], nor yet for the persons, the Court of Marshalsea had any jurisdiction ..." Ibid., p. 207. In the Case of the Marshalsea, Coke wrote "in Jeremy Gray's case, that judgment given in the Court of the Marshalsea in an action upon the case upon trover and conversion was reversed, because the statute did not extend to trespass on the case ..." Sir Edward Coke, The Tenth Part of the Reports ofSir Edward Coke . .. (1738), fol. 76. 20. Sir George Croke, The Second Part ofthe Reports ofSir George Croke . .. (2nd ed.; 1669), p. 314. 1976 THE COURT OF THE MARSHALSEA 273 on the case. More importantly, they extended the threat of punishment for false imprisonment to the officers of the Marshalsea. Coke, who was at that time ChiefJustice of Common Pleas, provides fairly full details of the compli• cated background of the case. In January, 1608, Thomas Ownstead became Downloaded from https://academic.oup.com/ajlh/article/20/4/267/1790893 by guest on 30 September 2021 indebted for £ 80 to Roger Cante, the debt having been contracted at Islington, which was then within the verge. When Ownstead did not fulfill his promise to repay the debt, Cante brought an action of assumpsit to the Marshalsea. Richard Hall and Richard Petty became bail for the defendant. Neither the plaintiffnor the defendant was a royal servant and thus, accord• ing to Michelborn's Case and Cox v. Gray, the Marshalsea could not deter• mine the matter. But the threat of]ohns v. Smith was still a few years away, and the Marshalsea heard the case. Ownstead pleaded non-assumpsit but the Court decided in the plaintiffs favor. Cante then had a capias issued to take the body of Ownstead or of Hall and Petty, the unfortunates who had stood bail for him. Ownstead had dropped from sightleaving Hall and Petty to be imprisoned in his place. Hall was arrested and held in the Marshalsea prison at Southwark for three months. He responded by suing the plaintiff, Roger Cante, and two officers of the Marshalsea, William Stanley and Wil• liam Richardson, for assault, battery, wounding, and false imprisonment. Common Pleas decided the case in 1612. 21 There is no record identifying the counsel representing the Court of the Marshalsea, but it is probable that Sir Francis Bacon, the solicitor general, who was an upholder of the royal prerogative and thus an enemy of extreme common law pretensions, presented the case for the defense. Since 1610, Bacon seems to have been associated with Sir Thomas Vavasor in a "co• presidency" of the Marshalsea.P Personal antagonism may have played a role in the Case of the Marshalsea, for Bacon and Coke were enemies. However the case would be decided, Bacon had the pleasure of knowing that (as we shall see) he had already taken steps to preserve the King's jurisdic• tion within the verge. Coke reported that Hall v. Stanley revolved around two points: 1. Whether an action on the case upon assumpsit for payment of a debt made within the verge be within the jurisdiction of the Marshalsea. 2. Admitting that it be not, then whether the defendants who had acted pursuant to the warrantof the said court, should be punishedfor false imprisonment or not. 23 Bacon-or whoever represented the Marshalsea-responded to both of these points. He argued first that the Marshalsea could determine cases

21. Coke, The Tenth Part of the Reports . .., fols. 68v-69v. 22. James Spedding, The Letters and Life of Francis Bacon (1868), v. 4, pp. 262-263; [Burton Morice], An Essay towards an History ofthe Ancientlurisdiction of the Marshalsea of the King's House (1812), p. 47. 23. Coke, The Tenth Part of the Reports . . ., fol, 69v. 274 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XX upon assumpsit, and contended that the statutes concerning the Court confirmed its cognizance of all trespasses committed within twelve miles of the King's residence. He realized that, since the decision in Cox v. Gray, the Articuli superCartas could be read to limit the Court'sjurisdiction to cases of trespass in which at least one party was a member of the household. Justice Downloaded from https://academic.oup.com/ajlh/article/20/4/267/1790893 by guest on 30 September 2021 Williams of the King's Bench had argued that the clause, "that one of the King's house shall have made with another of the same house," referred to trespasses. This was a strained interpretation, counsel for the Marshalsea contended, for the passage clearly limited the Marshalsea's jurisdiction of contract and covenant, not trespass. "Infinite precedents might be shewed" that the court held plea of trespass on the case, inc'luding assumpsit and trover. The second issue in theCase ofthe Marshalsea was whether the Court's officers were liable to an action of false imprisonment. Counsel argued that "it would be against reason to punish.them for executing the precept and warrant of the Court, when if they had refused, the Court would have punished them for their disobedience." If the Marshalsea had been wrong in hearing Cante's case against Ownstead, the correct procedure would have been to challenge the decision by a writ of error rather than by a suit for false imprisonment. 24 The Court of Common Pleas refused to accept the arguments presented by the Marshalsea and unanimously gave judgmentfor the plaintiff, Richard Hall. Coke's account may be a more extensive exposition of the case than the Court in fact articulated, but it does represent the final evolution of the common law's attitude toward the Marshalsea. The ChiefJustice attempted to prove that the Marshalsea had always been limited to household matters and that the Articuli super Cartas did not enlarge the Court's jurisdiction to include all trespasses within the verge. Although Coke referred to the deci• sions reached in Michelborn's Case and in Cox v. Gray, his argument de• pended on the fundamental principles of the common law. Seventeenth century jurists were as interested in "reason" as they were in judicial prece• dent. Since the early name of the Court was "placita coronae aulae hospitii dom' Reg' tenta' coram, &c," Coke argued that it would be unreasonable for the Marshalsea to determine any matter "which doth not concern any of the household." In addition, allowing anyone within the verge to have recourse to the Marshalsea "would not be seemly," for the Court was originally held in the King's hall and not everyone would have had the required clothing to appear there. "The Common Law regards conveniency, and doth not allow aliquid indecorum, nor that which is done contra bonos mores." To support this contention, Coke cited the gospel of St. Luke: "they which are gor• geously apparelled, and live delicately, are in Kings' courts." According to Coke, reason and convenience proved that the Marshalsea had been a household court before the reign of Edward I. Consequently, the

24. Ibid., fols. 69v-71. 1976 THE COURT OF THE MARSHALSEA 275 most important question was whether Parliament, in the Articuli super Cartas, had enlarged the Court's jurisdiction to disputes which did not involve the household. In Hall v. Stanley, the ChiefJustice was uninterested in debates over the punctuation of particular clauses; he was concerned about the nature of the statute itself. The Articuli super Cartas did not Downloaded from https://academic.oup.com/ajlh/article/20/4/267/1790893 by guest on 30 September 2021 introduce any new law; it merely explained previous charters: "Articuli super Chartas is as much as to say, explanationes super chartas." Coke argued that Edward I's statute, by repeating and amplifying earlier charters, was compelling erring institutions to obey the common law. The third chapter of the statute, the section referring to the Marshalsea, re-enacted and made specific chapter29 of the Magna Carta, whieh forbade oppressions contra legem terrae. The Articuli super Cartas, therefore, reduced "the Court of the Marshalsea to its true and lawful institution." In his final point about the jurisdiction of the Marshalsea, Coke argued that the statute used the word "trespass" in its simplest sense, vi et armis, and that the word did not refer to the new forms of trespass on the case, such as trover and assumpsit. The Court of Common Pleas decided that the officers of the Marshalsea were liable to an action for false imprisonment. Counsel for the Marshalsea had argued that the defendants should not be punished for carrying out the Court's order and that, if one of the parties had wanted to appeal the decision, he should have brought a writ of error to the King's Bench. Coke replied that these contentions were true only if the Marshalseahad cognizance ofCante's case. But since both the action and the persons involved were outside the Steward and Marshal's jurisdiction, "the whole proceeding is coram non judice." The officers of the Marshalsea were, consequently, no different from anyone else who had arrested a person without legal authority, and Hall could bring an action of false imprisonment against them.P The judge's motives in these cases are no longer easy to determine. It is difficult when dealing with the common law justices as a group to posit a consistently pursued policy. In each instance, there was a specific case to be decided with its own individual arguments. But this series of legal disputes which we have examined does present a pattern: the superior courts at Westminster wanted to limit the Marshalsea's jurisdiction. The straining of the grammar of the Articuli super Cartas - to make it read that litigants must be members of the household-suggests that the justices already knew the results that they would reach. Were the judges, in thus interpret• ing the Articuli super Cartas, engaged in a conscious common law policy to limit various tribunals? The cases about the Marshalsea occurred about the same time as the legal contest over the High Commission, but there is no evidence of a direct connection between the two matters. The most that can be safely said is that the judges' awareness of other jurisdictional disputes could not have failed to influence the way that they viewed the Marshalsea.

25. Ibid., fals. 71-77v. 276 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XX

Coke and other jurists were probably also sensitive to the growing opposition to the practices of some of the Marshalsea's officers. In 1607, a petition to the House of Commons and to the Privy Council claimed that the officers accepted bribes, engaged in extortion, and demanded excessive fees. Downloaded from https://academic.oup.com/ajlh/article/20/4/267/1790893 by guest on 30 September 2021 The result was that "the court hath transgressed all ... bounds and limits and like the salt raging sea hath overflown all the fresh pastures of the land." The Privy Council was not sympathetic: the councillors claimed that the "baser part" was forced to sign the petition and that the real origin of the petition was the "private malice" of an unspecified group whose goal "was always to take away the jurisdiction."26 The House of Commons, however, took the complaints seriously. Even before the presentation of the petition, the lower house had passed a bill limiting the Marshalsea. On March 6, 1606, the Commons began consideration of a "Billfor the Reformation of certain abuses and disorders in the Court of Marshalsey. "27 Despite the fact that the speaker, probably representing the government's wishes, seemed "willing to hinder the bill,"28 it proceeded fairly quickly, receiving its third reading on May 17.29 Surviving in the Lords' papers is a draft of this bill, under a slightly different title, "an act for reformation of abuses and the due execution of justice in the Court of Marshalsea." Much as the jurists of King's Bench in Cox v. Gray prefaced their decision with remarks about the usefulness of the Court of the Steward and Marshal, the bill began by praising the Marshalsea: "theCourtis a useful court in small matters not fit for the ordinary courts, and for giving relief against persons thatlurk in places of exemption, or pretend to be privileged." But this usefulness had been lessened by the fact that wealthy suiters had removed their cases to higher courts. In addition, the bill alleged that the officers of the Court were involved in "ill conduct" so that "the Court is scandalized and the subjects oppressed." The bill attempted to remedy these abuses by reducing the fees of its officers and insuring that execution of justice not be delayed by removal to a superior court. 30 The House of Lords read the bill twice and sent it to a committe from which it never emerged. 31 A few months later, on December 8, 1606, the Commons read a bill which not only proposed reformation of abuses but also attempted to enact limitations on the jurisdiction of the Marshalsea. The bill received its second reading on December 10 and was sent to a commlttee.P The measure prohibited the Marshalsea from holding any pleas of freehold; and from hearing cases of debt, covenant, and assumpsit unless both parties were

26. British Library, Lansdowne ·MS. 487, fols. 206-209. 27. j .C., v. 1, p. 278; (David Harris Willson, ed.)The Parliamentary Diary ofRobert Bouiuer, 1606-1607 (1931), p. 61. 28. Bowyer, op. cit. supra, note 27, p. 164. 29. t c.. v. L pp. 284,301,310; Bowyer, p. 170. 30. Great Britain, Historical Manuscripts Commission, Fourth Report, App., p. 118. 31. Great Britain, Parliament, journal of the House ofLords, v. 2, p. 436. 32. j .C.. v. L pp. 328-329. 1976 THE COURT OF THE MARSHALSEA 277 royal servants. Other actions on the case could be entertained only if one party were of the king's house.P In an attempt to limit the passage of such a sweeping measure, the knight marshal, in February 1607, introduced a bill to correct most of the abuses. He proposed that the number of officers be Downloaded from https://academic.oup.com/ajlh/article/20/4/267/1790893 by guest on 30 September 2021 reduced and his own fees be "abridged," but the House of Commons, object• ing to any measure which did not also limit the Court's jurisdiction, rejected the bill on its first reading.34 Meanwhile, the bill introduced in December was having a difficult time in committee, with the result that the committee prepared a new bill correct• ing abuses but permitting the jurisdiction "to stand as it hath been." The House responded with "much variance and dispute" and decided to have the original bill brought to the floor. 35 On May 5, counsel were heard. Thomas WaITe, the Steward of the Marshalsea, contended that the Court had cogni• zance of all actions not specifically forbidden by the Articuli super Cartas. Specifically, "common course or custom" confirmed the Marshalsea's au• thority over trespass on the case. The Commons read the bill for the third time six days later and sent it to the House of Lords. 36 In the upperhouse, the bill went to a committee where it remained until the prorogation of Parlia• ment. Sir Francis Bacon seems to have believed that the pressure to reform the Marshalsea, from both the House of Commons and the common law courts, was a part of a general attack against the King's judicial authority. In 1611, the government decided to withstand the threat by issuing new letters patent preserving the jurisdiction of the Marshalsea and the High Commission. In 1610, the Commons had protested the ex officio oath, by which the High Commission forced a man to testify against himself. Though retaining the oath, the 1611 letters patent removed some abuses. In addition, the King attempted to eliminate Coke's opposition to the Court by placing him and six otherjurists on the new commission. Coke refused to serve and the pressure against the ecclesiastical tribunal continued.P" Bacon's attempt to preserve the King's jurisdiction within the verge was far more successful, probably because, compared with the High Commis- 33. British Library, Lansdowne MS. 487, fols. 205-206; another copy is printed in Great Britain, Parliament, The Manuscripts ofthe House ofLords, v. 11, pp. 105-106, where it is misdated "19 May, 1606." The Lansdowne MS. indicates that it is the bill which the Commons had been considering since December, 1606, and which went to the Lords in May, 1607. 34. British Library, Lansdowne MS. 487, fols. 206-207; J.C., v. 1, p. 333; Bowyer, op. cit. supra, note 27, p. 207. On May 9, the knight marshal offered another bill to the same purpose with as far as can be determined the same result. J .C., v. 1, p. 371. 35. J.C., v. 1, pp. 365, 1038; Bowyer, op. cit. supra, note 27, pp. 274-275. 36. Great Britain, Historical Manuscripts Commission, Report on the Manuscripts ofthe Duke ofBuccleuch and Queensbury, v. 3, pp. 115-116;J.C., I, pp. 369,372,1040; Bowyer, op. cit. supra, note 27, pp. 287, 290. 37. ]. R. Tanner(ed.)Constitutional Documents ofthe Reign ofJames 1(1961), pp. 146-147. 278 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XX sion, the Marshalsea was a minor annoyance to Coke. Faced with a series of legal decisions limiting the Marshalsea, the government conceded defeat on the specific issues, but did so in such a manner that it won the substance of the dispu teo It accepted the common law's definition of the au thority of the Marshalsea, thus making it a court solely for the household, while instituting Downloaded from https://academic.oup.com/ajlh/article/20/4/267/1790893 by guest on 30 September 2021 a new tribunal, the Court of the Verge, which had the jurisdiction now forbidden to the Marshalsea. As early as 1608, Bacon had written a memorandum to examine the position of the Marshalsea.P" This examina• tion must have led him to two conclusions: that the superior courts would soon effectively curtail the Marshalsea's powers, and that the House of Commons' objections to the Court's officers and fees were justified. Bacon therefore convinced the King to establish by letters patent of June 8, 1611, the Court of the Verge. The preamble to the letters patent, probably composed by Bacon, recog• nized that some suiters in the Marshalsea had legitimate cause for "vexa• tion." Some officers, he admitted, had stirred up suits in order to increase theirfees. Moreover, the ambulatory nature of the Court had led to suiters not receiving judgment before the Court changed locations. The letters patent therefore lessened the fees collected by the Court and eliminated "all points which have and may make the said ancient Court of the Marshalsea griev• ous." Bacon next turned toward the problem of the Court's jurisdiction. Common law decisions had prohibited the Marshalsea from deciding tres• pass on the case and from having cognizance of mattersin which members of the household were not directly concerned, but the government found a method to preserve royal jurisdiction within the verge. The letters patent created a new court, the Court of the Verge, which had cognizance of all personal actions-including assumpsit and trover-arising within twelve miles of Whitehall Palace. The Court was not ambulatory, and it could hear cases which did not involve royal servants. The Court of the Marshalsea continued to exist dealing with household matters, but it seems that the t\VO courts acted as a single body; contemporaries made no distinction between the Marshalsea and the Court of the Verge or its successors. The Court of the Verge was held before Sir James Vavasor, knight marshal of the household, assisted by "some fit person learned in the law. "39 Not surprisingly, this "fit person" was Sir Francis Bacon.?? The authority of this Court was further defined at the end of King James I's reign. By the statute 21 James I, c. 23, a defendant could remove to a superior court any action in which damages were more than five pounds. The Court of the Verge thus became a tribunal for the recovery of small claims. 41

38. Spedding, op. cit. supra, note 22, p. 262. 39. Ibid., pp. 263-264. 40. [Morice], op. cit. supra, note 22, p. 13. 41. Blackstone, Commentaries on the Laws ofEngland, Bk. 3, p. 77, notes that in the eizhteenth century all important cases were quickly removed to a higher court. 1976 THE COURT OF THE MARSHALSEA 279

When Charles I succeeded to the throne, attorney general Robert Heath seems to have feared that the letters patent for the Court of the Verge were not valid, and he asked the King's Bench for an advisory opinion. The judges

requested copies of the letters to examine privately. Apparently, the King Downloaded from https://academic.oup.com/ajlh/article/20/4/267/1790893 by guest on 30 September 2021 then decided not to give the justices an unnecessary opportunity to challenge the creation of new courts by royal prerogative, and the letters were never given to the judges.v' Charles resolved the question himself by reconstitut• ing James I's Court under a new name, the Palace Court. On June 14, 1630, he asked the attorney general to prepare fresh letters patent "creating a court of Record for the Palace of Westminster and twelve miles about the same, by the name of the King's Court of his Palace of Westminster, for all personal pleas and actions. "43 The new name of the Court did not have immediate acceptance; a few years later it was referred to as "the Court of the Mar• shalsea, by virtue of a new patent." Sir Edmund Verney, the knight marshal, and Sir Edward Herbert, appointed Steward of the Court, became the judges, and John Bert was the first prothonotary. 44 Ifby this action Charles thought to forestall common law criticism of his private franchise court, his hopes were soon dispelled. In 1633, the Court of King's Bench heard Fish v. Wagstaff, a case which challenged the legality of Charles's use of the prerogative. The King naturally took a close interest in the progress of the case and wrote to the justices that the royal prerogative must remain intact. The Court replied that it would be "carefull ... that your Majesty should not suffer any prejudice or diminution in your power, royal and prerogative. "45 Despite the judges' assurance to the King, they ruled against the Palace Court. Few details are recorded about the case except that in the original matter of the dispute the Palace Court ruled in Wagstaffs favor. Fish then brought a writ of error to the King's Bench because neither plaintiff nor defendant was a royal servant. Since the letters patent creating the Palace Court allowed that tribunal jurisdiction of all personal actions within the verge, Fish's position was that Charles I's grant was not legal. The King's Bench agreed with him and decided that "a patent ad audiendum et ter• minandum omnes causas cannot be, but it ought to be only of criminal matters ... and for that reason judgement was reversed."46 Despite this decision, the Palace Court continued to meet and determine cases under Charles I's letters patent, and in Bulley v. Hubbins, a King's Bench case decided in 1640, the legitimacy of the Court was not contested. The case

42. [Morice], op. cit. supra, note 22, pp. 39-40. 43. Great Britain, Public Record Office, Calendar ofState Papers, Domestic Series [hereafter cited as "CSPDom"], Addenda, 1625-1649, p. 374; CSPDom, 1629-1631, p. 281; Public Record Office, Palace Court [MS] 9/6. 44. CSPDom, 1629-1631, p. 281. 45. [Morice], op. cit. supra, note 22, pp. 39-41. 46. Sir George Croke, The Third Part ofthe Reports ofSir George Croke . .. (2nd ed.; 1669), p. 318. 280 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XX ranged far geographically, from St. Clement's Dane to Hamburg, Germany. Almost all that is recorded of the legal proceedings in the Palace Court is that the defendant pleaded non-assumpsit. The King's Bench reversed the deci• sion because Hamburg was quite obviously outside the bounds of the verge.s? Downloaded from https://academic.oup.com/ajlh/article/20/4/267/1790893 by guest on 30 September 2021 With the exception of the Fish case, the second three decades of the seventeenth century had been a peaceful period for the Courts of the Palace and of the Marshalsea. But as the years of "Thorough" came to an end, the tribunal again came under attack. Since the terms Marshalsea and Palace Court were by this time interchangeable, it is not known to which courtJohn Smith objected in 1639; perhaps Smith himself made no distinction. As an attorney of the King's Bench, he may have represented continuing common law opposition to the Marshalsea's jurisdiction of personal actions within the verge. He characterized the Marshalsea as "a base court, erected on purpose to cozen the King's subjects." The judges of that Court indignantly commit• ted Smith to the Marshalsea prison, whereupon he secured a writ of habeas corpus and was released. He was not silenced by his imprisonment and after repeating his comments about the Court, he was again arrested and pro• duced once more a writ ofhabeas corpus. The final word recorded about this episode is the plaintive appeal of the keeper of the prison for advice whether to return this second writ. 48 The most successful attack upon the Court of the Marshalsea and the Palace Court occurred in the Rump Parliament. The abolition of the monar• chy had not in itselfprevented the continuation of the Palace Court. In 1651, the recorder of London, representing the mayor and alderman, complained that the Court was hearing cases that by right were in the cognizance of the local courtheld in Southwark, which was controlled by London. The petition received a favorable response from the Rump, perhaps because the Palace Court was tainted by association with the royal prerogative. Parliament voted on July 9, 1651, to abolish "the Court of the Knight 'Marshal held in South• wark," and it ceased to exist on August 1.49 The Palace Court may have been providing speedy justice to some people, for a group describing itself as "well-affected tradesmen" petitioned the Rump to reverse its decision discontinuing the Court. Before any action could be taken on this petition, Oliver Cromwell dismissed the remnant of the Long Parliament. The petitioners therefore addressed themselves to the Lord Protector on February 21,1654. They contended that the Palace Court had provided speedy and inexpensive justice. Since the abolition of the Court, they continued, many potential suiters had decided not to press their cases rather than become enmeshed in the "tedious and expensive" proce-

47. Ibid., p. 571. 48. csvto«, 1639, p. 427. 49. csvoo«, 1654, pp. 45-47; i c.. v. 6, p. 599. 1976 THE COURT OF THE MARSHALSEA 281 dure of the common law courts at Westminster. The petition was referred to a committee which reported to Cromwell on March 27, 1654. 50 The committee's report reflected the confusion existing about the name of the Court with cognizance over the verge. Although James I's tribunal had Downloaded from https://academic.oup.com/ajlh/article/20/4/267/1790893 by guest on 30 September 2021 been renamed the Palace Court, the committee still referred to it as "the Court of the Verge," which was "called the Marshalsea Court." The commit• tee left it to the Council of State whether to revive the Court, but included a petition against the tribunal, supposedly from "the inhabitants of South• wark." It had been delivered to the Rump in 1651, in opposition to the petition of "tradesmen" to restore the Palace Court. The Southwark petition claimed that the Court oppressed the poor and that those who wanted to restore it were lawyers interested only in "private lucre. "51 It is not known whether the self-named "well-affected tradesmen" were in fact lawyers; nor is it certain even that the authors of the second petition were actually "inhabitants of Southwark." Considering the interest of the London alder• men in abolishing the Palace Court, it is at least possible that they were behind the petition. Whatever the case, Cromwell and the Council of State apparently accepted the arguments against the Palace Court, for nothing more is recorded of the Court until the restoration of the monarchy. The Court of the King's Palace at Westminster quietly returned with King Charles II; by July, 1660, the words "Court of the Marshalsea" are found in official correspondence.52 But the King's Bench had not yet ac• cepted the legality of its existence, and in Inman v. Balten, decided in 1664, Justice John Kelyng decided that Charles I's letters patent were void.P" This judicial decision and a renewed questioning of the Court in the House of Commons in 166354led Charles II to express his support of the Palace Court by new letters patent dated October 4, 1664. 55 The Palace Court received surprisingly little attention during the remainder of the century. There were further Parliamentary criticisms of the Court's activities, especially in 1689 and 1690,56 but on the whole the Court settled down into peaceful obscurity. Gradually during the eighteenth century, the Palace Court lost much of its au thority and became an anachonism surviving primarily to maintain the sinecures ofitsjudges, counsel, and attorneys. As its usefulness declined, its fees rose. 57 Finally in 1849, Parliament abolished the venerable tribunal.s 8 50. CSPDom, 1653-1654, p. 411. 51. CSPDOl1l, 1654, pp. 46-47. 52. CSPDom, 1660-1661, pp. 137, 286,295. 53. [Morice], op. cit. supra, note 22, p. 29. 54. ic., v. 8, pp. 501,510; British Library, Hargrave MS. 307, broadside tipped-in at the end of the volume. 55. CSPDom, 1664-1665, p. 23; Public Record Office, Palace Court [MS] 9/6. 56. i c.. v. 10, pp. 294,400,459. 57. Blackstone, Comm., Bk. 3, p. 77; M. Dorothy George, London Life in the Eighteenth Century (1968), p. 401, note 116. 58. The entertaining story of its demise has been told in full by Theobald Mathew, "The Mayor's, Sheriffs, and Palace Courts," 31 lurid. Rev., pp. 139-151 (1919).